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Rafael Diaz of Lawrence, Massachusetts has been charged with Assault With Intent to Murder and Assault and Battery by Means of a Dangerous Weapon after stabbing a patron at a Lawrence nightclub this past Saturday. The victim, Javier Laboy was treated at Lawrence General Hospital and gave a description of Diaz. The police located Diaz at his home. He greeted the officers with a box cutter in his hand. His clothes had blood on them and he had a lump on his forehead. Diaz offered information that suggests Laboy might have been the first aggressor. The case is pending in the Lawrence District Court. If Laboy’s injuries are insignificant and Diaz has an unremarkable it is not likely that this case will be indicted to the Essex County Superior Court in Salem.

In Massachusetts if the defense of Self Defense is presented it is the obligation of the prosecution to prove beyond a reasonable doubt that the accused did not act in self-defense. Everyone has the right to defend himself. To do so however the following circumstances must be present: 1) that the defendant had a reasonable belief that he was being attacked or about to be attacked; 2) the he limit the force he uses to that which is reasonably necessary under the circumstances and 3) that he do all he reasonably can to avoid combat. In close cases judges in Massachusetts are supposed to give the defendant the benefit of any doubt and give a self-defense instruction. Depending on what happened at the nightclub self-defense might be an option for Diaz to set out at trial. It would be interesting to see what the patrons who witnessed the incident have to say.

Witnesses have described the incident as a fight. Self-defense is commonly employed to counter allegations that a defendant was the aggressor in a fight. When a defendant utilizes a self-defense argument the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant did not act in self-defense. Defendants have the right to use self-defense when they reasonably believe that they are being attacked or immediately about to be attacked and that their physical safety is at immediate risk. They can use no more force than is reasonably necessary under the circumstances of the case to defend themselves. The defendant must also try to avoid combat before resorting to force. Depending on how the fight evolved Perez might be able to defend his case on this theory.

Just before Thanksgiving Massachusetts Police set up a sobriety checkpoint in North Andover, Massachusetts. According to many reports Kenneth Howe, a forty five year old father of three was a passenger in a car being driven by a friend. The car was pulled over at the sobriety checkpoint. Howe might have had a marijuana cigarette in his possession that he was trying to extinguish. When asked to get out of the car he jumped out of a window, supposedly struck an officer and attempted to run away. He was quickly apprehended. Other reports suggest that Howe was dragged out of the car by a female trooper who claimed that Howe had assaulted her. A friend of Howe’s who was present at the time stated that up to twenty police officers descended on Howe. The lawyer for Howe’s family, Frances King commented that the “police acted like savage beasts” and that a witness overheard officers stating it was a “good thing we had flashlights”. Howe was taken to the police barracks in Andover where he collapsed during booking. He was taken to the Lawrence General Hospital where he was pronounced dead.

Almost every time I have a client who has been charged with Assault and Battery on a Police Officer the client comes into my office looking pretty beat up. There is no secret in Massachusetts Criminal Legal circles that this charge is filed anytime the police get overly aggressive with a suspect. Defense attorneys, judges and prosecutors know this and often the result of the case; i.e. a dismissal of this charge reflects this sentiment. The best thing defense attorneys can do in a case like this is go to the crime scene and look around for surveillance cameras. Post 9-11 many businesses and government structures such as schools, highways, bridges and even police vehicles have installed videotaping equipment to monitor suspicious activity. In this case, if there is video evidence of this incident I have no doubt that Attorney King will find it. She is an excellent attorney who knows firsthand how law enforcement officers operate.

I am more curious to see how the Essex County District Attorney’s Office handles this case. If Attorney King’s witnesses’ account of this event is accurate, what will Mr. Blodgett do? Twenty or even ten police officers beating a man to death at a sobriety checkpoint is nothing short of murder. How can these actions be justified? How injured was the female trooper? Did she go to the hospital? The law on self-defense in Massachusetts is clear. You can use no more force than is necessary to defend yourself. Was it necessary to use force sufficient to kill Howe? And would it not make more sense for an independent agency to investigate this case? After all, Mr. Blodgett’s office prosecutes cases that many of these officers have investigated. If ten or twenty civilians went to the aid of a female friend or colleague who claimed to have been struck by a stranger and beat him to death you can be assured that Mr. Blogdett would respond with indictments. One thing you can be sure of. If Jonathan Blodgett does not properly investigate this case, Frances King will.

“JR'”, a pseudonym, of Randolph, Massachusetts was charged with Armed Assault With Intent To Murder, Discharging a Firearm Within 500 Feet of a Building and Improper Storage of a Firearm after a dispute with his neighbor over a fence ended up in a shooting. According to reports JR and his wife were in their yard last Friday night when the neighbor went onto JR’s property to discuss an ongoing dispute regarding a fence that separates the neighbor’s properties. The discussion turned violent when JR hit the neighbor who responded by throwing a beer can at JR. Supposedly JR then pulled out a gun and shot the neighbor in the stomach. Afterwards JR tried to stop the bleeding and tended to the man’s wound. JR’s wife told police that he had been out drinking earlier in the evening and that he becomes violent when he drinks. JR is licensed to carry firearms. His bail was set at twenty thousand dollars by a judge in the Quincy District Court.

A couple of thoughts come to mind when reading this article. Did JR act in self-defense? Even if he did the law in Massachusetts makes clear that people can use force in self defense however no one can use more force than is reasonably necessary under the circumstances of this case. In a case like this jurors will consider the relative sizes of the combatants, their actions and the location of this incident. Keep in mind that this happened on JR’s property suggesting that the neighbor could have been the aggressor. The neighbor used a dangerous weapon on Leonard prior to the shooting. Further actions by the neighbor not addressed in the article could give rise to a legitimate self-defense claim. The fact that JR immediately assisted the neighbor suggests that the shooting might have been an accident. An “accident” in Massachusetts is defined as an unexpected happening that occurs without intention or design on the defendant’s part. It means a sudden, unexpected event that takes place without the defendant’s intending it. Here, brandishing the gun does not necessarily mean that JR intended to fire it. The act of shooting might have been an accident, a valid defense to these charges.

Alejandro Lopez is being charged with Assault And Battery With A Dangerous Weapon in the Cambridge District Court after stabbing a co-worker last week. According to reports Lopez and an unidentified man got into an argument at the Superior Nut Company Factory where the two worked. Lopez then stabbed the man and went back to work; at all times working with the knife he used to stab the victim. When the police arrived at the scene they observed the victim soaked with blood. He identified Lopez as the assailant just after getting into the ambulance. The case is pending in the Cambridge District Court.

Assault and Battery By Means of a Dangerous Weapon is a felony in Massachusetts. The statute prohibiting this act is Massachusetts General Laws Chapter 265 Section 15A. The statute provides for a two and one half year jail sentence or a ten year state prison sentence if convicted. Punishment for a conviction of this offense typically defends on the severity of the injuries suffered by the victim, the defendant’s criminal record and the conduct of the complaining witness. Assuming that the victim is not seriously injured in this case and the defendant does not have a significant criminal record the prosecution will probably continue in the district court. Defenses to these charges vary depending on the intent of the defendant, his actions and the conduct of the person who got stabbed. I have seen self-defense and accident work successfully as defenses to this charge on several occasions in the past. The fact that Lopez remained on the job and continued to work is somewhat significant and might factor heavily in the defense or disposition of this case.

Just last week the Quincy Patriot Ledger reported that if Brian Cherry survived the beating he took from Michael McGunigle he paralysis or blindness could result. The article stemmed from an incident that occurred on July 6, 2009 in Abington, Massachusetts. It was alleged that McGunigle left his dog tied to a vehicle outside a local restaurant for about an hour. The dog acted aggressively towards passersby and Cherry commented to McGunigle that the dog should be crated. The comment purportedly set McGunigle off. Witnesses then observed the defendant strike Cherry who fell to the ground and struck his head. Initially McGunigle was arrested and charged in the Brockton District Court with aggravated assault and battery and released on three thousand dollars cash bail. Unfortunately Cherry did not survive the attack. He died at a local hospital this past weekend. Now, McGunigle has been charged with Manslaughter. He has been indicted and will have to defend against these charges in the Plymouth County Superior Court. Earlier today McGunigle surrendered himself to authorities.

Articles about this case have suggested that the defendant has claimed that he acted in self-defense. Massachusetts law permits a person to act in self defense and use reasonable force to defend himself from a physical attack. Self-defense is a complete defense to manslaughter charges and if believed by a jury the accused will be acquitted. Once evidence of self-defense has been shown at trial the district attorney must prove beyond a reasonable doubt that the defendant did not act in self defense. This defense takes on a very different understanding when used in connection with a charge of manslaughter, voluntary or involuntary.

Seventeen year old Bridgewater, Massachusetts resident Trevor McGarry was at his home the other day when another teenager with whom he had been in conflict went to his house to “fight with him”. According to reports the victim went to McGarry’s house after an earlier altercation with the specific purpose of fighting McGarry. In the course of the fight McGarry ended up stabbing the other individual in the back with a folding knife. The victim removed the knife from his back himself and returned to his home. His parents called the police later that evening. McGarry was arrested and charged with assault and battery by means of a dangerous weapon.

I would not be surprised if this case is defended on self-defense grounds. In Massachusetts once evidence of self defense is introduced the prosecutor must prove beyond a reasonable doubt that the defendant did not act in self-defense. You can defend yourself with a dangerous weapon if you have a reasonable ground to believe, that you are in imminent danger of death or serious bodily injury from which you can save yourself only by using deadly force. Where as in this case someone goes to your house with the intent to fight you this defense might be viable. Everyone should feel secure in his home.